adl 504 - class note 7

Administrative Law

Class Note 7

Shuvro Prosun Sarker

B.A. LL.B (Calcutta), LL.M (NUJS), PhD Candidate (NUJS)

Assistant Professor

School of Law, KIIT University

Disclaimer: This class note is skeletal in nature and

comprising only points of discussions. So this note should not

be construed as sample answers or model answers for the

purpose of any examination.

© Shuvro Prosun Sarker, 2014.

Magna Carta (1215)

It included the fundamental acknowledgement that the king was not above the law.

King John promised that “no free man shall be taken or imprisoned … or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

Dr. Bonham’s Case

8 Co. Rep. 114 (Court of Common Pleas) [1610]

Chief Justice Coke held that court could declare any act of the parliament void if it made a man judge of his own cause, or was otherwise against common right and reason.

Due Process- US

5th Amendment of the US Constitution- 1791. Introduced the due process clause.

Due process clause says, to the federal government that no one shall be "deprived of life, liberty or property without due process of law.“

14th Amendment (1868), uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Substantive Due Process It is a principle which allows federal courts to protect

certain fundamental rights from government interference under the authority of the due process clause of the 5th and 14th Amendments to the US Constitution.

It aims to protect individuals against majoritarian

policy enactments that exceed the limits of governmental authority—that is, courts may find that a majority's enactment is not law, and cannot be enforced as such, regardless of how fair the processes of enactment and enforcement actually are.

Procedural Due Process

Aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial (e.g., the right to sufficient notice, the right to an impartial arbiter, the right to give testimony and admit relevant evidence at hearings).

Natural Justice

In simple term is means “the natural sense of what is right and wrong”.

Requirements of natural justice

1. Impartial persons acting fairly,

2. Without prejudice or bias.

Two fundamental rules of natural justice-

1. A man must not be the judge of his own cause/ No bias.

2. A man’s defence must be heard fairly.

A man must not be the judge of his own cause/ No Bias

1. Personal Bias- arises from certain relationship equation between the deciding authority and the parties.

Mineral Development Corpn Ltd vs. State of Bihar

AIR 1960 SC 468

2. Pecuniary Bias- any financial interest would vitiate administrative action.

R vs. Bow Street Metropolitan Stipendiary Magistrate

(1999) 1 ALL ER 577 (HL)

***Economic liberalization, free market, share and bias of a judge.

3. Subject matter bias- if the deciding officer or judge is directly or otherwise involved in the subject matter of the case.

G. Nageswara Rao vs. A.P. SRTC

AIR 1959 SC 308

4. Departmental Bias

Again-

G. Nageswara Rao vs. A.P. SRTC

AIR 1959 SC 308

Hari K Gawali vs. Dy. Commissioner of Police

AIR 1956 SC 559

***Hearing Officers and Inspectors- US and UK

5. Policy Notion Bias- preconceived policy notions

6. Class bias/ personality bias

7. Bias on account of inflexibility

A man’s defence must be heard fairly / audi alterum partem

A person must be given an opportunity to defend himself.

R vs. University of Cambridge (Dr. Bentley Case)

(1723) I Str 757

Requirements of Fair Hearing

1. Acting Judicially- duty to act fairly in hearings.

2. Right to notice- adequate information on the case.

3. Right to know the evidence.

4. Right to present case and evidence

5. No evidence at the back of other party

6. Report of the enquiry to be shown at the other party

7. Reasoned decision

Indian Constitution and Natural Justice

The principles of natural justice have come to be recognized as being a part of the guarantee contained in Article 14 of the Constitution because of the new and dynamic interpretation given by the Supreme Court to the concept of equality, which is the subject matter of that Article.

The constitution of India, while guaranteeing right to life and personal liberty in Article 21 in the same under “procedure established by law”, the expression procedure established by law was substituted by constituent Assembly for due process clause as embodies in American constitution Art. 21 of the constitution envisage.

In the A.K. Gopalan’s case, (AIR 1950 S.C 27) Supreme Court held that procedure established by law meant procedure prescribed by the statute.

Obviously it implies that law enacted by the state need not be in conformity with the principles of natural justice. Law in Art. 21 meant statute law and nothing more. In case of a procedure prescribed by law it cannot be questioned on the ground that it violates principles of natural justice. There is no guarantee that it will not enact a law contrary to the principles of A learned author was prompted to observe that this position of Art.21of the Indian constitution was more of a statute justice land not natural justice.

Gopalan’s decision dominated the Indian scene for twenty eight years till the decision of Supreme Court in the celebrated case of Maneka Gandhi’s which revolution the application rules of natural justice in India. In the instant case, a writ petition was filed under Art. 32 challenging the impugned order interlaid amongst other grounds for being impugned for denial of opportunity of being heard prior the impoundment of passport.

As per Maneka’s rationale, a procedure could no more be a mere enacted or state prescribed procedure as laid down in Gopalan’s but had to be fair, just and reasonable procedure. The most notable and innovative holding in Maneka was that the principle of reasonableness legally as well as philosophically is an essential element of equality or non-arbitrariness and pervades Art. 14 like a boarding omnipresence and the procedure contemplated by Art. 21 must stand the test of reasonableness in Art. 14.